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Defenses: Eleventh
Amendment Immunity

•••• EDITOR'S
CASE ALERT ••••

Georgia sheriffs held to be an "arm of
the State" in establishing "use-of-force" policy for county
jails, and therefore entitled, in their official capacity, to Eleventh
Amendment immunity from liability. Sheriff was not subject to federal civil
rights lawsuit for damages for alleged assault on a detainee by deputy
and a police officer after the arresting officer stated that the prisoner
had previously struck him.

A federal appeals
court, acting en banc, has held by 6-5 that Georgia sheriffs are an "arm
of the State" of Georgia for the function of setting "use-of-force"
policy for county jails and are therefore entitled to immunity from liability
under the Eleventh
Amendment. That Amendment protects states and their agencies from lawsuits
in federal court, with certain limited exceptions, such as state consent.
As a result, a Georgia sheriff was not subject in his official capacity
to a federal civil rights lawsuit for money damages by a detainee who claimed
that he was attacked and repeatedly struck by a deputy and a police officer
after one arresting officer mentioned at the jail that the prisoner had
previously struck him. Injuries in the case were allegedly serious enough
to result in a mental hospital stay, and the prisoner claimed that the
officers struck his head against a wall, and that he was subsequently forced
to write a statement for jail officials which said "They had to be
rough with me to let me know that they mean business."

The majority opinion
did not rely on or even cite the decisions of other federal appeals courts,
five of which, according to the dissenters, have previously ruled that
county sheriffs were not immune under the Eleventh Amendment for civil
rights violations at jails. The majority stated that "we focus on
Georgia law, as opposed to how other circuits treat sheriffs under other
states' laws, because states have extremely wide latitude in determining
their forms of government."

The majority opinion
argued that the Georgia State Constitution provides that only the state
legislature, and not the counties, can determine the powers and duties
of sheriffs, despite election of sheriffs by residents of each county.
It also noted that sheriffs perform a variety of functions for state government,
including incarcerating prisoners convicted of some state crimes, and bringing
criminal defendants to state court. The decision acknowledged that counties
pay most of the budget of the county jails, but rejected the argument that
this alone made the sheriff a county as opposed to state actor for purposes
of the lawsuit at issue. The majority noted that the state had the ability
to control the duties of the sheriff, to train sheriffs, and to discipline
sheriffs, and that the state also had the ability to require counties to
fund the sheriffs' budget and the jail budgets while precluding them from
controlling the sheriffs.

The majority also
cautioned that it was merely deciding that the sheriff was an arm of the
State for purposes of the function of setting "use of force"
policy for the county jail, and was not deciding that he was an arm of
the State for all purposes. The majority opinion explicitly notes that
Georgia state law imposes some burdens on counties to provide medical care
for inmates. The decision does not decide whether the sheriff is a county
or state actor for purposes of claims concerning prisoner medical care.

The dissenting opinion
placed more emphasis on the decisions of the other federal appeals courts,
and the fact that the majority opinion acknowledged that there appeared
to be no Georgia law requiring that the state pay any judgment against
the sheriff, so that a judgment against the sheriff in his official capacity
would not "drain" the state treasury. It also argued that it
was possible that the sheriff was not a policymaker for the county, but
a separately suable governmental entity, and that sheriffs could be found
not to act on behalf of the county, without reaching the conclusion that
they acted on behalf of the state instead.

The majority opinion
rejected the argument that its decision would leave the prisoner without
a remedy for the harm he allegedly suffered, noting that the Eleventh Amendment
immunity would not bar a lawsuit against the sheriff in his individual
capacity or against the individual deputy and officers allegedly involved
in the incident.

Prisoner's allegations that his leg infection
and urinary tract infection worsened and became more serious as a result
of inadequate medical treatment was sufficient to support a claim against
prison officials for violation of his Eighth Amendment rights, but trial
court acted erroneously by declining to rule on the merits of prison officials'
motion for summary judgment on the basis of qualified immunity, particularly
when plaintiff did not file an affidavit in opposition or show why he needed
further discovery to respond.

A former
Michigan state prisoner claimed that he was denied proper medical treatment
while in prison, and that he contracted a urinary tract infection and leg
infection while incarcerated. He claimed that the failure to provide adequate
medical treatment resulted in these conditions worsening and becoming more
serious. The urinary tract infection was alleged to have caused epididymitis
and an enlarged testicle, as well as a low sperm count and severe pain
during intercourse. The leg infection, which allegedly began as a result
of inadequate medical treatment of an injury from falling through a set
of bleachers in the prison yard in 1987, "plagued him" throughout
his imprisonment and required ongoing medical treatment until his death
in 2002.

The trial court
rejected a motion by defendant prison officials to dismiss the lawsuit
the prisoner filed charging them with deliberate indifference to his serious
medical needs in violation of the Eighth
Amendment. The trial judge also declined to address the merits of the
defendants' motion seeking summary judgment on the basis of qualified immunity,
and instead ordered further discovery, stating that summary judgment was
premature until such discovery was completed.

A federal appeals
court agreed that the prisoner's claims, if true, stated a claim for deliberate
indifference to serious medical needs, and that the rejection of the motion
to dismiss was therefore correct.

It also found, however,
that the trial court erred in failing to rule on the merits of the defendant's
motion seeking summary judgment on the basis of qualified immunity. It
noted that the purpose of qualified immunity was to prevent the burden
of proceeding with litigation--including discovery--from being unnecessarily
placed on governmental defendants.

By failing to elaborate on why further discovery
was necessary to properly decide the motion, the district court erroneously
denied the defendants the benefits of their defense from suit (if that
defense is, indeed, meritorious).

Further,
while the defendants properly presented and supported their motion for
summary judgment, the plaintiff failed to file an affidavit in opposition
to the motion, or to show why he required further discovery in order to
properly respond.

The appeals court
ordered the trial judge to hold further proceedings to consider the motion
for summary judgment on its merits.

Federal appeals court, by 6-5 vote, upholds
constitutionality of attorneys' fees limits in prisoner lawsuits imposed
by the Prison Litigation Reform Act. Trial judge's finding of an equal
protection violation overturned in case where prisoner was awarded damages
for alleged deliberate indifference to his need to be evaluated for a liver
transplant.

The case at issue
was one in which a Wisconsin jury found that a medical director for the
state prison system had acted with deliberate indifference to the serious
medical condition of a prisoner suffering from end-stage liver disease,
refusing to allow him to be evaluated for a transplant operation until
after he filed suit. A jury in that case awarded the prisoner $10,000 in
compensatory damages and $30,000 in punitive damages. The prisoner's attorneys
requested almost $93,000 in attorneys' fees, but the award would have been
limited to $46,452 under the Prison Litigation Reform Act. The trial judge,
however, ruled that the PLRA limits were unconstitutional, awarding $80,000
in attorneys' fees.

The PLRA limits
fee awards in prisoner cases to amounts reasonably incurred in proving
an actual violation of the prisoner's rights, to an amount "proportionately
related" to the court ordered relief for the violation, and, in cases
involving a monetary judgment, allows the use of a portion of the judgment
(not to exceed 25 percent) to be used for attorneys' fees, with the remainder
of any award of attorneys' fees--so long as it is not greater than 150%
of the judgment--to be paid by the defendant. The statute also limits the
hourly rate to be paid for attorneys' fees in such cases to no greater
than 150 percent of the hourly rate established under 18
U.S.C. Sec. 3006A for the payment of court-appointed attorneys.

The majority ruled
that Congress did not violate the equal protection rights of prisoners
who are prevailing parties in their civil rights claims by treating them
differently, for purposes of awards of attorneys' fees, than other civil
rights litigants. A five judge plurality of the appeals court, in a decision
written by Judge Easterbrook, found that Congress could have rationally
decided that prisoners are different from other litigants when it comes
to civil rights litigation, and therefore decided to treat them differently
for purposes of awards of attorneys' fees.

Congress could have
believed, the judges noted, that prisoners have more "free time"
to devote to lawsuits or may even, in some cases, view pursuing litigation
as "recreation," having a "burning desire to turn the tables
on the guards and other prison personnel, discomforting if not hurting
or humiliating them." Congress could also have rationally believed
that prisoners have a greater tendency to lie than other litigants, resulting
in the filing of more frivolous litigation, which the attorneys' fee limit
was designed, in part, to deter.

Prisoners are less honest than free persons and
thus more likely to tell tall tails of victimization. The convictions that
put them in prison establish their proclivity to violate the law when they
see a personal advantage in doing so.

As a result,
Congress could determine that that any "drawbacks" connected
with the caps on attorneys' fees are outweighed by the benefits.

A rational legislature could conclude that a small
reduction in weak, trivial or bogus suits is worth achieving even at some
potential cost to prisoners' ability to prevail in the less common meritorious
suit.

A concurrence by
one additional judge turned the plurality decision into a slim majority
result, with Judge Ripple agreeing that the restrictions on attorneys'
fees may have been based on the desire to deter frivolous lawsuits, and
commenting that restricting awards of attorneys' fees in lawsuits where
prisoners prevail--focusing therefore more on nonfrivolous cases--was not
likely to be the best way to address frivolous lawsuits and an overabundance
of prisoner litigation. But he also stated that the court should not "second-guess"
Congress and that "as long as our legislators could have had a rational
basis for their actions, we must allow their judgment to stand. We have
no right to demand that Congress achieve a perfect, or even a near perfect
accommodation between means and ends."

The remaining five
judges on the appeals court, in a dissent written by Judge Rovner, found
that the limits constituted an equal protection violation.

The only impact this provision will have is on
the meritorious prisoner actions, rendering it even more difficult for
prisoners to adequately present these meritorious claims to the courts,
and more difficult for the court to find counsel willing to accept appointments
to represent prisoners in such cases. The government does not purport to
have a legitimate interest in deterring prisoners from filing meritorious
suits, nor could it, and there the provision is unconstitutional.

The court's plurality
opinion states that no other federal appeals court to date has found the
attorneys' fee limitations unconstitutional.

Prisoner could pursue claims against some nurses
for alleged inadequate medical care and retaliation against him for filing
of an earlier lawsuit, but not against one nurse against whom he had failed
to exhaust available administrative remedies concerning retaliation claim.
The prisoner's grievance only had to allege misconduct by the nurses and
did not need to plead all the elements of a particular legal theory.

A Michigan
prisoner, acting as his own attorney, brought a federal civil rights lawsuit
against a number of prison nurses claiming that they had been deliberately
indifferent to his serious medical needs and retaliated against him for
filing a previous lawsuit against them.

In particular, he
claimed that one nurse was deliberately indifferent to his health care
requests and also improperly charged him for health care visits he did
not receive and that another failed to return his hospital records and
petroleum jelly because she was named as a Defendant in his lawsuit. He
also claimed that the nurses attempted to interfere with the processing
of his grievances to "cover up" for their inadequate medical
care of his chronic ulcerative colitis.

A federal appeals
court found that these claims were sufficient to state claims both for
inadequate medical treatment and for unlawful retaliation for his prior
lawsuit, and that he had exhausted available administrative remedies as
to two of the nurses and a health unit manager. The grievance he filed
was sufficient by alleging this misconduct, even if it did not attempt
to "plead all the elements" necessary to support a particular
legal theory of liability set forth in his subsequent lawsuit.

Retaliation claims
against one nurse, however, could not proceed for failure to exhaust administrative
remedies as required by 42
U.S.C. Sec. 1997e, since the first time the retaliation claim was raised
as to this nurse was at the second stage of the grievance, so the claim
was not properly asserted at the first stage of the grievance, as required.

Court's order requiring prisoner to be kept
in a particular facility to allow him to effectively pursue pending litigation
did not entitle prison officials to absolute immunity from the inmate's
claim of deliberate indifference to his confinement there which allegedly
resulted in his being attacked by a cellmate for being a "snitch."

A Delaware
prisoner involved in two federal civil rights lawsuits had cooperated with
a drug trafficking investigation at one prison that ended with the arrest
of prison officials and inmates, and was therefore known as a "snitch"
by prison authorities. For purposes of convenience and economy, a state
trial judge ordered that he be kept at a particular correctional facility
in order to facilitate his participation in the progress of his lawsuits
through the courts.

At his new facility,
a correctional officer allegedly called him a "good telling mother
f----ing snitcher" in front of other prisoners, and a deputy warden
subsequently made a determination that the officer did make this statement.
A committee unanimously recommended that the prisoner be placed in protective
custody, but this recommendation was allegedly rejected, leaving the prisoner
with no additional safety precautions.

A month later, the
prisoner obtained a new cellmate, who allegedly attacked him the following
day, sending him to the hospital, where he was treated for a fractured
jaw. The cellmate pled guilty to the assault and stated that he had made
the attack because the prisoner was a "snitcher on inmates and officers"
at his prior facility.

The injured prisoner
filed a federal civil rights lawsuit seeking damages for alleged deliberate
indifference to the risk of assault on him, in violation of his Eighth
Amendment rights.

A federal appeals
court rejected the argument that the defendant correctional officials were
entitled to absolute immunity from liability based on the state court judge's
order requiring the prisoner to be kept at a particular facility in order
to facilitate his participation in the progress of his lawsuits. This order
did not require the correctional officials to keep the prisoner in conditions
that they knew to pose a substantial risk of serious harm to him. Indeed,
to the contrary, the judge's order expressed concern that they take special
precautions" to ensure the prisoner's safety, and there was even a
docket entry noting that the prisoner was to be kept in "protective
custody," making it clear that he was to be kept safe.

The court did order
further proceedings, however, on whether defendant members of a committee
which made the final decision to take "no action" on a recommendation
that the prisoner be placed in protective custody were entitled to "quasi-judicial"
influential immunity since their function in making this determination
was "functionally comparable" to that of a judge, as well as
other issues in the case, including the possibility of qualified immunity.

Alleged failure to grant prisoner the right
to request interviews of witnesses to incident and the consideration of
their testimony at disciplinary hearing violated the prisoner's due process
rights.

An Illinois
prisoner filed a lawsuit in state court seeking to compel correctional
officials to expunge part of his disciplinary record, arguing that the
discipline had been imposed on him without due process, in violation of
state statutes, and in violation of departmental regulations. In particular,
he claimed that he was denied his requests that witnesses to incidents
be interviewed and their testimony considered.

It found that the
prisoner's claim that discipline was imposed on him while ignoring his
request to interview certain witnesses to an incident in which he allegedly
cursed at a correctional officer and threatened him, was sufficient to
state a due process claim. Even though the prisoner did not get the names
of the requested witnesses exactly right, the court found that asking for
"Officer Bowery" might be close enough as a request for "Officer
Bowers" and that a request for nurse "Twala" might be sufficient
as a request for nurse "Twala Walton" as witnesses. If so, and
if they were available to give relevant testimony, then both due process
and the department's rules required that they be called or interviewed
on the prisoner's request.

Several other complaints
by the prisoner concerning other disciplinary proceedings were properly
dismissed, however, the appellate court found, including a claim that he
was given improper notice of the charges at one hearing because of unclarity
about whether he spat on another inmate or through an ink pen. An inconsistency
between two officers' report of an incident, with one stating that it occurred
at 9:55 a.m. and the other saying that it happened at 10 a.m., was insubstantial
and not an indication of any violation of the prisoner's rights.

Manufacturer of paper gown allegedly marketed
for use with suicidal prisoners could be held liable when it failed to
tear away when detainee hanged himself with it. Claims for products liability,
negligence, and breach of warranty could proceed, along with due process
claims against city for alleged reckless failure to provide proper medical
care for suicidal prisoner. Court dismisses Eighth Amendment claim as inapplicable
for the death of a pretrial detainee, as opposed to a convicted prisoner.

A Chicago
man was arrested and placed in a detention cell at a police station. Officers
are alleged to have known that he was mentally unstable and suicidal, having
witnessed him attempting suicide by slitting his wrists. The officers removed
his clothing and provided him with a paper isolation gown, which he used
to hang himself. The man's estate contended that the officers failed to
adequately monitor the cell, and failed to provide proper medical care
when they found him, still alive, hanging in the cell. The estate asserted
claims against the city for negligence and against the city and the officers
for alleged violations of the detainee's Eighth
and Fourteenth
Amendment rights, and for willful and wanton conduct.

The estate also
asserted claims for products liability, negligence, and breach of warranty
against the company that manufactured and designed the paper gown, allegedly
with the knowledge that it might be worn by a suicidal detainee. The complaint
asserted that it was defectively designed because the gown did not tear
when the detainee hanged himself.

The trial court
rejected a motion by the manufacturer to dismiss these claims. The manufacturer
argued that the suicide and the city's alleged negligence were "independent
acts that break any causal connection" between any act or omission
in the manufacture and design of the gown and the death.

But the plaintiff
specifically claimed that the paper gowns were supposed to break away in
the event that a person attempts to use the gown to hang himself, so that
the particular gown was defective.

Are the injuries claimed something that a reasonable
person would see as a likely result of producing a defective gown used
by suicidal detainees? At this point, plaintiff has claimed enough of a
connection between EMS' [the manufacturer] allegedly defective gown and
the claimed injuries to preclude finding the injuries unforeseeable as
a matter of law.

The court also noted
that there can be "multiple proximate causes of an injury," rejecting
the argument that the suicide and the officers' alleged negligence were
independent intervening causes of the death which precluded liability on
the part of the manufacturer. The court acknowledged that the manufacturer
could still argue, in proceedings to come, that these intervening acts
made the allegedly defective gown "a mere condition to injury,"
but "at this stage of the proceedings," the court declined to
dismiss these claims for "failure to plead proximate cause."

The trial court
granted the city's motion to dismiss Eighth Amendment claims, on the basis
that the Eighth Amendment protection against cruel and unusual punishment
provides the standard for care of convicted prisoners, not pretrial detainees,
who have been convicted of nothing and accordingly cannot be punished at
all. Accordingly, the plaintiff's claims under the Fourteenth Amendment's
due process clause--which provides rights "at least as great as the
rights of a convicted prisoner" under the Eighth Amendment, would
be allowed to proceed.

Finally, the court ruled
that state law negligence claims, based on alleged negligence in supervision,
training, and hiring of personnel, should be dismissed as based on discretionary
actions for which the city is immune under the Local Governmental and Governmental
Employees Tort Immunity Act, 745
ILCS 10/2-201. The claim for willful and wanton breach of a duty
to summon immediate medical care, however, fell outside the scope of this
immunity, and was not dismissed.

Prisoner could state a claim for retaliatory
transfer for having filed a grievance against an officer based on a sequence
of events from which a retaliatory motive could be inferred, without proving
motivation in the complaint. Illinois prisoner had a protected liberty
interest in continued participation in work release program which could
not be ended without due process.

An Illinois prisoner
serving a sentence of incarceration was placed in a work-release program
which allowed him to engage in outside employment. On one day, however,
when he returned to the "Transition Center" detention facility
from work, he was allegedly confronted by a supervisory officer who "falsely"
advised him that his movement out of the facility was not approved. The
officer allegedly became "agitated and verbally abusive" when
the prisoner attempted to explain that he had been following proper procedure.

The prisoner then
filed a written grievance against the officer describing the confrontation.
After this was submitted, the officer filed an inmate disciplinary report
charging the prisoner with "giving false information to an employee,"
"insolence," and "unauthorized movement," charges the
prisoner contended were filed even though the officer knew them to be false.

A hearing on the
disciplinary report was held and the supervisory officer was allegedly
"allowed to participate in the deliberations of the hearing and dictated
its result," which was that the prisoner was immediately transferred
out of the Transition Center and sent to higher security facility, losing
the ability to participate in the work release program. He filed a federal
civil rights lawsuit claiming that the transfer was retaliatory for his
filing of grievance against the officer, an exercise of his First
Amendment rights.

Turning down motions
by defendant correctional officers to dismiss the lawsuit, a federal trial
court ruled that the prisoner adequately state a claim for retaliatory
transfer, based on a "chronology, or sequence of events, which could
support a claim of retaliation," i.e., that the supervisory officer
filed the disciplinary report "solely to retaliate for plaintiff's
having filed the grievance against him."

The court noted
that the plaintiff was under no obligation "to prove motivation at
this pleading stage. Because of the difficulty of proving intent at the
time of a complaint, it is sufficient for plaintiff to allege a sequence
of events."

The plaintiff further
adequately alleged a violation of due process by two officers constituting
the hearing panel, by claiming that they allowed the complaining supervisory
officer to participate in the deliberations of the hearing in violation
of Sec. 504.80 of the Illinois Administrative Code, and also allowed him
to "dictate the result, in essence conducting a 'sham' hearing."

The defendants were
not entitled to qualified immunity, as the prisoner's right to be free
of retaliation for his exercise his First Amendment free speech rights
in filing a grievance against the officer was "clearly established."

Lastly, the trial
court rejected the argument that the prisoner had no protected liberty
interest in remaining in the detention facility where he could participate
in the work-release program. The court noted that the U.S. Court of Appeals
for the Seventh Circuit held in Montgomery
v. Anderson, #00-2869, 262 F.3d 641 (7th Cir. 2001) that a prisoner
has a statutory liberty interest in good-time credits and parole once they
have been awarded pursuant to state or administrative regulations. "Each
prisoner is then entitled to remain in the designation that they have been
assigned to, unless he or she commits a violation, because of the significant
hardship such a reduction would impose upon the prisoner," and therefore
must receive due process before a reduction due to a rule violation can
take place.

Work-release, the
court reasoned, which allows the inmate to participate in employment outside
the institution, "is analogous to parole," since both allow "a
measure of restricted, supervised liberty during period otherwise encompassed
by the inmate's sentence." A prisoner's removal from work-release
therefore results in an "atypical and significant hardship" in
relation to the "ordinary incidents of prison life.

An Illinois prisoner,
the court ruled, has a statutory liberty interest in participation in work-release
programs once it has been awarded under 20 Ill. Adm. Code 504, which cannot
be terminated without due process.

Three federal trial court decisions rule that
a change in federal Bureau of Prisons' policy concerning the placement
of inmates serving short terms of imprisonment into community correctional
facilities violated the "notice and comment" requirements of
the Administrative Procedures Act (APA). Retroactive application to inmates
currently in halfway houses also rejected.

In three recent
cases, federal trial courts have addressed federal prisoner's claims challenging
recent changes in federal Bureau of Prisons'
(BOP) policy concerning the placement of inmates in community corrections
facilities to serve short terms of imprisonment.

The BOP previously
exercised discretion to place federal inmates serving short terms of imprisonment
in community corrections facilities, such as "halfway houses."
On December 13, 2002, a lawyer with the U.S. Department of Justice with
the title of Principal Deputy Assistant Attorney General composed an eight
page legal memorandum in which he characterized this practice as unlawful.
The BOP therefore informed all federal judges that it would not longer
consider a judge's recommendations for such placements under any circumstances,
and also announced that this rule would be retroactively applied, with
individually currently at halfway houses with more than 150 days remaining
in their sentences to be transferred within 30 days to more conventional
federal prisons.

In the cases reported
below, prisoners with current placements in such halfway houses challenged
such transfers.

In Iacaboni v.
U.S., 251 F. Supp. 2d 1015 (D. Mass. 2003), the court held that the
BOP's change in its policy was invalid because its method of adopting it
failed to satisfy the requirements for notice of the change and an opportunity
to comment on the proposed changes, as specified in the Administrative
Procedure Act (APA), 5
U.S.C. Sec. 551 et seq., because the policy change was a "substantive"
change, rather than merely an "interpretive rule." Additionally,
even if the policy were valid, it could not be applied retroactively to
federal inmates already in community corrections facilities, the court
held. Further, the court found, the BOP's denial that it had discretion
to place inmates in community corrections facilities was based on an erroneous
interpretation of 18
U.S.C. Sec. 3621(b) in the Justice Department legal memorandum, since
the court found that this statute did not render community corrections
placements unlawful.

In Howard v.
Ashcroft, 248 F. Supp. 2d 518 (M.D. La. 2003), the court found that
the plaintiff prisoner seeking to avoid a transfer from a community corrections
facility to a federal prison did not have to exhaust available administrative
remedies before filing suit as the pursuit of such remedies would be "futile,"
since those who would view the prisoner's claims in the administrative
process had no power to alter the decision. This court also held that the
change of policy was issued in violation of the notice and comment requirements
of the APA, and that the prisoner was likely to prevail on the claim that
the policies were inconsistent with the plain meaning of the statute governing
the authority of the Bureau of Prisons and was therefore entitled to immediate
injunctive relief.

In Ferguson v.
Ashcroft, 248 F. Supp. 2d 547 (M.D. La. 2003), two consolidated cases
challenging the BOP new policy, the court also granted injunctive relief
and found a failure to comply with the APA requirements and other defects
in the new rule.

»Click here
to read the court's decision in Iacaboni on the AELE website.

»Click here
to read the court's decision in Howard on the AELE website.

»Click here
to read the court's decision in Ferguson on the AELE website.

Guards and operator of private facility with
custody over only federal prisoners could not be sued under federal civil
rights statute, 42 U.S.C. Sec. 1983, since they did not act under "color
of state law," but the guards at the facility were acting under color
of federal law and therefore could still be sued directly for alleged violations
of prisoner's constitutional rights in leaving him unprotected against
assault by another prisoner. Such a claim could not, however, be asserted
against the corporation which operated the prison.

A Rhode Island statute
authorizes municipalities to create public corporations that would own
and operate detention facilities. Under that statute, the City of Central
Falls, Rhode Island created the Central Falls Detention Facility Corporation
to build and own such a facility. The corporation is not a part of the
City, but rather has a "distinct legal existence." Financing
to build it came from bonds issued by the Rhode Island Port Authority.

This company subsequently
contracted with the U.S. Marshals Service to house federal pretrial detainees
and also contracted with a private corporation to operate the facility
and employ the staff. Only federal prisoners were held at the facility.
One such prisoner claimed that he reported to a guard that he had received
numerous threats from black inmates and requested protective custody, but
he was left in the general population and was viciously beaten by several
black inmates when left unattended during a fire drill.

The prisoner filed
a lawsuit in federal court against several guards, as well as the private
corporation which runs the facility, alleging violation of his constitutional
rights in failing to protect him against the assault. The complaint asserted
claims under both 42
U.S.C. Sec. 1983 and Bivens
v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971). 42 U.S.C. Sec. 1983 provides a remedy for violations of federally
protected rights by persons acting "under color of state law,"
while the Bivens opinion held that a federal officer acting under
"color of federal law" may be liable for damages for violating
a person's constitutional rights.

The trial court
found that neither the guards nor the corporation operating the facility
acted under "color of state law" for purposes of a Sec. 1983
claim, since they only maintained custody of federal prisoners, which was
neither a power "possessed by virtue of state law" nor one that
has been "traditionally exclusively reserved to the state." The
Sec. 1983 claims therefore were dismissed.

The trial court
further noted that the U.S. Supreme Court has previously ruled, in Correctional
Services Corp. v. Malesko, 534 U.S. 61 (2001) that a private corporation
operating a prison is not subject to a lawsuit under Bivens, and
therefore dismissed the Bivens claim against the defendant corporation
also. The U.S. Supreme Court had reasoned that, since Bivens actions are
against individual federal officers, rather than against the U.S. government,
allowing a Bivens action against a private corporation operating the facility
would give the prisoner greater rights than those enjoyed by prisoners
at publicly-operated prison facilities.

The Supreme Court's
decision, however, left open the issue of whether a prisoner at a privately
operated prison may assert a Bivens action against individuals employed
at the prison. The trial court found that the guards at the prison at issue
were "federal actors" acting under "color of federal law.
The defendant guards, in essence, acted as the "alter ego" of
the U.S. Marshall who exercised ultimate authority and custody over the
prisoners, who were awaiting the disposition of federal charges against
them.

The court also noted
that the prisoner could not seek redress for his injuries through the Bureau
of Prisons' Administrative Remedy Program, because it applies only to those
incarcerated in BOP facilities and half-way houses operated under
contract with the BOP, and does not apply to individuals confined in other
facilities, or to the prison at issue, in particular.

Refusing to apply Bivens to a federal prisoner's
claim for alleged constitutional violations simply because that prisoner
is incarcerated at a privately-operated prison rather than a government-operated
prison would deprive that prisoner of a remedy available to prisoners at
government-operated facilities, thereby running counter to the desire for
parity expressed in Malesko.

Bivens claims
against the individual defendant guards, therefore, were allowed to proceed.

New York federal court rules that "Five
Percenter" group, widely classified by correctional institutions as
a security threat group and gang, is entitled to treatment as a religion
by prison officials. Injunction issued allowing prisoner to possess a copy
of the group's basic text and numerological devices, with further proceedings
ordered as to the possible right to possess other group materials and symbols,
including its newspaper, or to engage in gatherings and fasts.

A New York prisoner,
formerly known as Rashaad Marria, who has adopted a new name of Intelligent
Tarref Allah, is a member of the "Nation
of Gods and Earths," which he initially joined in prison while
awaiting trial, and he has remained a member since 1994. He filed a federal
civil rights lawsuit challenging a policy of the state Department
of Correctional Services classifying the "Nation," commonly
known as the "Five Percent Nation", as an unauthorized or "security
threat" group, and the resulting ban on his receipt and possession
of Nation materials and literature, including the groups "central
texts" and its newspaper, and a ban on formal gatherings with other
members of the group.

The "Nation,"
whose members are commonly referred to as "Five Percenters,"
or the "Five Percent" are a split off of the Nation of Islam
(NOI), a group that the state correctional department classifies as a religion,
and one with which the "Nation" shares some of its teachings
and its central text. The term "Five Percent" comes from statements
by NOI leader Elijah Muhammad, separating the world's population into
three categories--the Five Percent, the Ten Percent, and the Eighty-Five
Percent. Muhammad argued that the Ten Percent teach the Eighty-Five Percent
to believe in the existence of a "mystery God," and thereby keep
the Eighty-Five Percent enslaved by having them worship something that
they cannot see, while the remaining Five Percent are the "poor, righteous
teachers" who do not believe in the teachings of the Ten Percent,
and instead teach the "identity of the true and living God, as well
as freedom, justice, and equality to all human families of the planet earth."

Members of the "Five
Percent" Nation additionally believe that every black man is an embodiment
of God with the proper name Allah and every black woman is "Earth,"
from which life springs, and hold to a black supremacist belief that the
white man is "the devil." The group has been widely classified
by prison authorities as a gang or security threat group on the basis of
involvement in violent incidents and promotion of beliefs that might lead
to confrontations and violence.

No government shall impose a substantial burden
on the religious exercise of a person residing in or confined to an institution,
as defined in section 1997 of this title, even if the burden results from
a rule of general applicability, unless the government demonstrates that
imposition of the burden on that person--

(1) is in furtherance of a compelling governmental
interest; and

(2) is the least restrictive means of furthering
that compelling governmental interest.

This is a much heavier
burden than is usually required to uphold correctional policies or practices
which must only be rationally related to a legitimate penological interest.

The federal trial
court placed a great deal of emphasis on the sincerity of the plaintiff
prisoner's beliefs. It noted that he had organized his daily life around
the group's teachings, legally changed his name to "Allah," and
refused to eat pork. Additionally, there was nothing in his prison record
indicating involvement in disruptive conduct or violent incidents, and
the prisoner had earned his GED high school certificate and participated
in other programs and classes.

The court therefore
found that the inmate's beliefs were sincere, that they were religious
in nature, and that his practice of his religion was being "substantially
burdened" by the correctional department's policy. It additionally
found that the department had failed to show that its complete ban on the
group's literature and activities furthered a compelling security interest
and was the least restrictive way to do so.

The court found
that the correctional officials failed to provide "any evidence"
that its decision to treat "Five Percenters" as a security threat
group was "either reasoned or informed." The Department allegedly
had no records setting forth the basis for its decision or "even documenting
its decision-making process concerning the Five Percenters." Additionally,
the Department admitted that its classification of the Five Percenters
as a security threat group was not based on "any guidelines or specific
criteria." The court reasoned that the decision was "subjective"
and that the Department "knows little about the Nation's seemingly
legitimate existence outside prison," and failed to present any evidence
concerning how it came to the conclusion that it is not a religion.

The court stated
that the headquarters of the group in New York City, the "Allah Youth
Center in Mecca" and "Allah School in Mecca," enjoys not-for-profit
tax status as a 501(c)(3) organization and a favorable ninety-nine year
lease from New York City paid at the rate of $20 per month, and that the
center conducts substance abuse programs, and after-school tutoring for
children.

Various incident
reports concerning violent acts by individual members of the group, the
court stated, were an insufficient basis for a ban on the group as a whole
or a determination that it was not religious in nature.

There are prisoners who would describe themselves
as Catholics, Protestants, Jews, Muslim, NOI, etc. who likewise violate
prison regulations, and it is easy to imagine a situation where the common
ethnic or religious bond shared by members of a group could serve as the
impetus for some to band together and at times act cohesively, but no one
would suggest that such facts preclude the classification of these recognized
groups as religions deserving of First Amendment protection.

The court granted
an injunction requiring the correctional officials to allow the prisoner
to possess a copy of the group's central text and its numerological devices,
claimed to be important to the practice of the religion. The court also
noted that the central text of the group, known as the 120 Degrees, was
also a religious text for the Nation of Islam, and that members of the
NOI were allowed to possess it. Based on this, the correctional officials
could not reasonably argue, the court found, that the mere presence of
the book in a prison, by itself, would be disruptive.

Further proceedings
and determinations were ordered to be made by correctional officials concerning
his other requests for possession of the group's materials and symbols,
and for participation in group gatherings and fasts.

In doing so, the
court said, "it is incumbent upon DOCS to make a determination about
the feasibility of allowing sincere adherents like plaintiff to possess
literature and to engage in religious practices in light of its security
concerns." On remand, the court stated, because the prisoner established
that his religious beliefs are "substantially burdened" by the
current ban on The Five Percenter newspaper, the DOCS "bears the burden
of demonstrating why his proposals are infeasible." The prisoner proposed
that an existing media review committee be use to remove symbols that it
views as posing a security threat, or that the prison maintain a copy of
the newspaper in the prison library that the plaintiff could sign for and
read individually during normal library time, without removing it.

Prison officials
are supposed to report back to the federal judge in 60 days regarding their
progress on these issues.

State prison may not deny treatment of prisoner's
alleged gender identity disorder solely on the basis that he only initially
sought such treatment after his incarceration.

A New York federal
court judge has ruled that a state prisoner serving a 50-year-to-life term
for murder cannot be denied medical treatment, including possibly a sex
change operation, and related procedures, solely on the basis that he only
sought such treatment after he became incarcerated.

The plaintiff prisoner
claims that he became aware of his "female identity" as early
as his childhood, but that he only became familiar with the medical diagnosis
of "gender
identity disorder" once he was imprisoned. This is a judicially
and medically recognized psychiatric disorder. The prisoner, since 1998,
has requested diagnostic psychotherapy for this disorder.

The prisoner stated
the belief that this psychotherapy would establish that he is entitled
to further treatment, including "electrolysis, vocal chord modulation,
breast implant surgery" and other operations.

His request for
the psychotherapy and other treatment, however, was denied under a policy
of the New York State Department
of Correctional Services which provides that therapy for prisoners
suffering from gender identity disorder may continue if they began the
gender reassignment process before incarceration, but that for prisoners
who discover the disorder and seek to begin the procedure "during
incarceration, transsexual surgical operations are not honored."

The court rejected
this as an inadequate basis for the denial of treatment.

Surely inmates with diabetes, schizophrenia, or
any other serious medical need are not denied treatment simply because
their conditions were not diagnosed prior to incarceration.

In issuing his ruling,
the judge emphasized that he was not at this time ordering a sex change
operation or any specific course of medical treatment, but rather ordering
the state to provide adequate medical and psychiatric evaluation to determine
what treatment would ultimately be appropriate.

Prisoner was not
entitled to an appointed lawyer to pursue his claims concerning alleged
violations of his right of access to the courts and counsel, since the
lawsuit did not involve "difficult" legal or factual issues and
the prisoner, who acted as his own lawyer, was sufficiently familiar with
federal civil rights actions. Davidson v. Goord, 259 F. Supp. 2d
238 (W.D.N.Y. 2003) [See also the federal magistrate's earlier decision
and recommendations, reported as Davidson v. Goord, 259 F. Supp.
2d 236 (W.D.N.Y. 2002)]

Disability Discrimination: Employees

Policy of state
correctional department requiring employees to submit general medical diagnoses
as part of the medical certification procedure concerning the employee's
entitlement to leave violated the Americans with Disabilities Act (ADA),
42 U.S.C. Sec.
12112, since it constituted an inquiry into whether the employee might
have a disability and was prohibited in the absence of a showing of "business
necessity." Conroy
v. New York State Department of Correctional Services, No. 02-7415,
333 F. 3d 88 (2nd Cir. 2003). [PDF]

Inmate who succeeded
in his claim that he was improperly denied access to certain public records
by a state official was entitled to an award of postage, envelope, and
copying costs as "reasonable costs of enforcement" under Florida
statute, F.S.A.
Sec. 119.12, when the prisoner acted as his own attorney, even if such
costs would not be recoverable if he was represented by a lawyer, since
these would be "normal office overhead expenses" for an attorney.
Weeks
v. Golden, 846 So. 2d 1247 (Fla. App. 1st Dist. 2003). [PDF]

Inmate Funds

Pennsylvania prisoner's
rights were not violated by the actions of correctional officials in deducting
funds from his inmate account to pay fines and costs imposed as part of
his sentence. State statute governing the collection of fines and costs
was "procedural" and therefore could be applied retroactively.
George
v. Beard, 824 A.2d 393 (Pa. Cmwlth 2003). [PDF]

Mail

Prison policies
prohibiting the receipt of free or gift subscriptions to publications,
preventing some inmates in a lower offender classification from purchasing
publications, and limiting other inmates to spending no more than $30 per
month to purchase publications did not violate prisoners' First
Amendment or due process rights and were rationally related to legitimate
interests in controlling, managing, and tracking property in order to identify
prohibited activities, promote institutional order through privileges and
incentives, and making sure there were sufficient assets to collect inmates'
other financial obligations, such as restitution and child support. Failure
to notify publishers when prisoners were denied receipt of mailed publications
did not violate the publishers' constitutional due process rights. Zimmerman
v. Simmons, 260 F. Supp. 2d 1077 (D. Kan. 2003).

Marriage/Procreation

Prison officials
were entitled to qualified immunity on a claim for damages for postponing
a prisoner's marriage to his fiancee for twelve months, since it was not
clearly established that a delay of that length was unconstitutional. Lawsuit's
claims for injunctive relief were moot, since prior restrictions on the
fiancee's visits were lifted and the couple had been allowed to marry.
Martin
v. Snyder, No. 02-1135, 329 F.3d 919 (7th Cir. 2003). [PDF]

Medical Care

Prisoner failed
to show that prison officials violated his Eighth
Amendment rights by allegedly forcing him to do work which caused pain
or aggravated a prior medical condition when there were no medical restrictions
on the prisoner in effect when he transferred to the facility, and medical
restrictions placed on the prisoner at his prior institution had expired
and were two to four years old. Hogan
v. Oklahoma Department of Corrections, No. 02-7091, 65 Fed. Appx. 662
(10th Cir. 2003).

Prisoner failed
to show that correctional officials were deliberately indifferent to medical
needs including hypoglycemia,
hypertension,
dental complaints, and problems with his feet, back, legs, fingers, and
wrists. The record contained "abundant evidence" that he received
treatment for these medical needs since 1992, and, at most, that he disagreed
with his health care providers and correctional officials as to the recommended
treatment programs for these problems, which was insufficient to state
a constitutional claim. Baker
v. Simmons, #02-3260, 65 Fed. Appx. 231 (10th Cir. 2003).

Medical staff at
county detention facility did not show deliberate indifference to prisoner's
serious medical needs by denying him access to post-cancer reconstructive
surgery at Veterans Administration (VA) hospital.
While the prisoner did inform them that he had surgery scheduled there,
he did not sign the necessary release form to obtain his VA medical records
to determine the need for the surgery and the nature of the problem, nor
did he show that any substantial harm resulted from the delay in the surgery.
Shepard
v. Sullivan, No. 02-1198, 65 Fed. Appx. 677 (10th Cir. 2003).

Parole

Prisoner's claim
that participation in parole decision by temporary Parole Board members
appointed by Governor without state Senate confirmation violated state
law did not establish a federal civil rights claim for violation of due
process, in the absence of any evidence that their participation altered
the result or denied him any procedural rights necessary to a fair decision.
Sonntag v. Papparozzi, 256 F. Supp. 2d 320 (D.N.J. 2003).

Prison Litigation Reform Act:
Exhaustion of Remedies

Summary judgment
was improper on prisoner's claim that correctional officers assaulted him
when there was a genuine issue of fact as to whether he had exhausted his
available administrative remedies prior to filing suit, as required by
the Prison Litigation Reform Act, 42
U.S.C. Sec. 1997e(a). Evans v. Jonathan, 253 F. Supp. 2d 505
(W.D.N.Y. 2003).

Prisoner Assault: By Inmate

Jury awards estate
of inmate murdered by another prisoner $2,641 in damages on claim that
a prison employee showed deliberate indifference to the risk of harm after
the inmate had taken action which resulted in his assailant getting suspended
from a prison print shop work assignment for improperly using the telephone.
Flint v. Kentucky Department of Corrections, No. 96-CV-0591 (E.D.
Ky. July 10 2003), reported in The National
Law Journal, p. 14 (Aug. 11, 2003).

Even if correctional
officer was "grossly negligent" in leaving prison dorm without
obtaining a replacement monitor, this was insufficient to impose civil
rights liability for subsequent assault on prisoner by alleged gang member
housed in the same unit, as it did not show "deliberate indifference"
to a known risk of harm. Miller v. McBride, No. 02-1147, 64 Fed.
Appx. 558 (7th Cir. 2003).

Prisoner Assault: By Officer

State-established
jail authority which held immigration detainees in custody under a contract
with the federal government acted under "color of state law"
for purposes of one such detainee's excessive force claim arising out of
actions of correctional officers. Federal contract did not specify how
the authority was to supervise its guards and the detainee's claim alleged
failure to adequately train officers and "condonation" of their
use of excessive force. Jarno v. Lewis, 256 F. Supp. 2d 499 (E.D.
Va. 2003).

Prisoner Discipline

Prisoner had no
federal constitutional right not to be falsely accused of misconduct in
prison disciplinary hearings, nor could a federal civil rights claim be
based on the mere failure to follow all applicable state procedures in
the hearing held. Jackson v. Hamlin, #02-2040, 61 Fed. Appx. 131
(6th Cir. 2003).

There was substantial
evidence to support the determination that a prisoner was guilty of violating
disciplinary rules prohibiting making threats and harassment of staff members
by sending a nurse a letter with derogatory and insulting language, as
well as refusing direct orders from a correctional officer to step out
of a recreation area. Green
v. Ricks, 760 N.Y.S.2d 238 (A.D. 3d Dept. 2003). [PDF]

Female prison guard's
conduct report, stating that inmate, while naked, jumped around his cell
and made sexual gestures and comments to her was a sufficient basis for
a disciplinary board's decision to find the prisoner guilty of violating
rules against making sexual propositions to a staff member and impose a
punishment of the loss of 180 days of good-time credits. Higgason v.
Hanks, No. 02-2775, 64 Fed. Appx. 556 (7th Cir. 2003).

Prisoner Suicide

County and county
sheriff reach $300,000 settlement with family of jail inmate on their claim
that his needs for psychiatric counseling were ignored, leading to his
successful suicide. Lawsuit contended that the jail staff had knowledge
that the prisoner had suicidal tendencies and had been diagnosed as a manic-depressive
schizophrenic, but failed to make arrangements to provide mental health
care. Estate of Price v. Black Hawk County, No.
00-CV-2008 (N.D. Iowa March 21, 2003), reported in The
National Law Journal, p. B2 (April 7, 2003).

Protective Custody

Indiana prisoner
had no constitutionally protected right to a hearing concerning his transfer
from protective custody. "Classification matters should be left to
prison authorities unless there are clear constitutional violations involved."
Miller v. McBride, 259 F. Supp. 2d 738 (N.D. Ind. 2001).

Public Protection

County could not
be held liable for failing to protect community member against being shot
and killed by a "house arrestee" who escaped after removing his
home monitoring device. The county had no special relationship with the
shooting victim which imposed a duty to protect him against this risk,
and the county, in failing to take any action to recapture the house arrestee,
did not do anything to create the danger to the victim. Kennerly v.
Montgomery County Board of Commissioners, 257 F. Supp. 2d 1037 (S.D.
Ohio 2003).

Religion

Prisoner's claim
that prison officials denied twelve separate requests he submitted to attend
Jehovah Witness religious services was sufficient to state a claim for
violation of his First
Amendment right to exercise his religion, so that court declined to
dismiss the claim. Gill v. Hoadley, 261 F. Supp. 2d 113 (N.D.N.Y.
2003).

Sexual Assault

President Bush on
September 4, 2003 signed into law the Prison
Rape Elimination Act of 2003 unanimously passed by Congress on July
24, 2003 (Senate) and July 25, 2003 (House of Representatives. Click here
to read President Bush's statement on signing this law.

Sexual Harassment

Female correctional
officers showed that sheriff's office provided a pervasively sexually hostile
work environment for female employees and that they faced unlawful retaliation
for complaining about it. Officers did not show, however, that they were
denied promotions and were terminated on the basis of sex discrimination.
Court awards both of two plaintiffs $150,000 in compensatory damages and
$20,000 in punitive damages, as well as attorneys' fees. Brissette v.
Franklin County Sheriff's Office, 235 F. Supp. 2d 63 (D. Mass. 2003).

Visitation

Massachusetts prisoner
did not have constitutionally protected liberty interests which were infringed
by his loss of visitation for six weeks as a punishment for allegedly violating
prison disciplinary rules. Childers v. Maloney, 247 F. Supp. 2d
32 (D. Mass. 2003).

Work/Education Programs

Participation in
an "industrial training" leave program was not a right for a
New York inmate, so that he was not entitled to a review of a decision
denying his request to participate in the program. Further, the nature
of the prisoner's crimes, which included his misconduct as an attorney
in misappropriating over $4.7 million in funds from his clients' escrow
accounts, raised "serious doubts" about whether he was trustworthy
enough to participate, and whether his release for participation "posed
a threat to community safety." Wallman
v. Joy, 760 N.Y.S.2d 560 (A.D. 3d Dept. 2003). [PDF]

Statistics:
Census of State and Federal Correctional Facilities, 2000 Provides
information on facilities, inmates, programs, and staff of State and Federal
correctional facilities throughout the Nation, and of private correctional
facilities housing State or Federal inmates. Earlier censuses in this series
were conducted in 1974, 1979, 1984, 1990, and 1995. Information was collected
from prisons; prison boot camps; reception, diagnosis, and classification
centers; prison forestry camps and farms; prison hospitals; youthful offender
facilities (except in California); facilities for alcohol and drug treatment;
work release and prerelease; and State-operated local detention facilities
in Alaska, Connecticut, Delaware, Hawaii, Rhode Island, and Vermont. State-level
data are presented on facility, inmate, and staff characteristics, as well
as facility programs. Comparisons are made, when possible, with findings
from the previous census conducted in 1995. Highlights include the following:
The number of adult correctional facilities increased 14%, from1,464 at
midyear 1995, when the previous census was conducted, to 1,668 at midyear
2000. In 2000, 264 privately operated facilities were under contract with
State or Federal authorities to house prisoners -- an increase of 140%.
The number of inmates held in these facilities rose 459% (from 16,663 inmates
in June 1995 to 93,077 in June 2000). A total of 430,033 correctional staff
were employed in State and Federal prisons on June 30, 2000. Nearly two-thirds
of these staff (270,317) were correctional officers, responsible for custody/security.
(August 2003) NCJ 198272 Acrobat
file (733K - PDF) | ASCII
file (47K) Spreadsheets
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Defenses: Qualified Immunity -- See
also Marriage/Procreation
Employment Issues -- See also Sexual Harassment
Escape -- See also Public Protection
First Amendment -- See also Mail
Prisoner Classification -- See also Protective Custody
Prisoner Discipline -- See also Visitation
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